K.M. Agarwal, J.
1. This is an appeal under Section 28 of the Hindu Marriage Act, 1955 (in short, the 'Act') by the husband against dismissal of his petition for divorce under Section 13 of the Act.
2. It is not disputed that on 26.3.1983 the appellant was married with the respondent. They have two daughters out of their wedlock. The appellant filed a petition for divorce on the ground of cruelty. The respondent resisted the petition by denying the allegations made against her. The petition was dismissed by the Court below. Being aggrieved, the husband has perferred this first appeal under Section 28 of the Act.
3. On 3.1.1991, the learned Counsel for the parties were heard and at their request they were permitted to file written arguments on or before 5.1.1991. On 5.1.1991 an application was made for extending the time till 7.1.1991 for the purpose of filing written arguments. Although no orders were made on this application for extension of time, written arguments were filed in the Court on 7.1 1991 along with an application for amendment of the petition for divorce (3. A. No. 206/91). The written arguments are considered after taking them on record.
4. By the application for amendment, the appellant wants to get his marriage with the respondent declared void on the ground that they stand within the degrees of prohibited relationship. It has been stated in the application that in her statement as also in her evidence, the respondent admitted that the appellant and the respondent were within the degrees of prohibited relationship. However, I do not think it proper to allow this application for amendent at this belated stage. Section 5(iv) and (v) prohibit marriages who between two Hindus who are within the degrees of prohibited relationship or are Sapindas of each other 'unless the custom or usage governing each of them permits of a marriage between the two'. In the light of these provisions contained in clauses (iv) and (v) of Section 5 of the Act, the marriage of the appellant with the respondent cannot be declared void simply on the ground that they are within the prohibited degrees of relationship. It will be open to the respondent to show that such marriage was permissible according to their caste custom or usage in the family. The appellant could have filed a petition under Section 11 of the Act for declaring his marriage with the respondent void on the ground urged in the application for amendment, but he did not do so although the present petition for divorce was not the first petition but was second petition for divorce after dismissal or withdrawal of similar petition for divorce filed by him as discussed by the Court below in paragraphs 14 of its impugned judgment. Under these circumstances, I find no justification for allowing this application for amendment at this appellate stage of litigation. The application is accordingly rejected.
5. The Court below has given cogent reasons for holding that the ground of cruelty was not proved by the appellant. The learned Counsel for the appellant was unable to demonstrate in his oral or written arguments that this finding of the Court below is perverse. His only attempt was to show that the respondent herself alleged and proved that the appellant was the son of real sister of her mother and, therefore, a decree for nullity ought to have been granted. I am of the view that in a petition under Section 13 of the Act for divorce, no relief under Section 11 of the Act could be granted to the appellant by declaring his marriage to be void on the alleged ground under Section 5(iv) of the Act. I, therefore, find no case for interference with the impugned judgment and decree of the Court below.
6. For the forgoing reasons, this appeal fails and it is hereby dismissed. In the circumstances of the case, 1 make no order as to costs of this first appeal.